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Monday, 11 May 1987
Page: 2914


Mr SPENDER(4.06) —In his second reading speech, the Attorney-General (Mr Lionel Bowen) commenced by saying:

This Bill continues the practice of introducing an omnibus Bill into each sittings of the Parliament as an expeditious way of making a large number of non-contentious amendments to legislation not otherwise being amended.

That has been the practice, although it seems to be the tendency that the Statute Law (Miscellaneous Provisions) Bill (No. 1) gets larger and larger and each time the Bill comes in, its field becomes all-embracing. Instead of being called an omnibus Bill, it could well be called a kitchen sink Bill commencing, as it does, with the Administrative Decisions (Judicial Review) Act 1977 and concluding with amendments to the Wine Grapes Levy Collection Act 1979 to which the Attorney-General has just referred.

The amendment to the proposed amendment to which the Attorney-General has just referred is something that I can deal with immediately. It would have this effect: It would insert in proposed new section 10 (2) of the Wine Grapes Levy Collection Act certain words after the words `any such return or information that is furnished'. It would be amended in these terms:

A person is not excused from furnishing a return or information that the person is required under this Act or the regulations to furnish on the grounds that the return or information might tend to incriminate the person, but any such return or information that is furnished--

the additional words come in here-

`and any information or thing (including any document) obtained as a direct or indirect consequence of the furnishing of the return or information' is not admissible in evidence against the person in:

(a) criminal proceedings other than proceedings for an offence against subsection (1) or (5); or

(b) proceedings for the recovery of a penalty payable under section 5.

What the amendment does is not put the provision of the Wine Grapes Levy Collection Act 1979, an Act which empowers certain persons to request information, on the same basis as the various immunities that are to be found in current legislation or passed by the House over the last few years. In short, it simply follows the ordinary immunity provision and, as such, we have no objection to it.

I wish only to make some brief comments on some of the matters which are dealt with by this Bill. Various amendments are made to the Audit Act 1901; one of the amendments provides:

The Auditor-General when requested by the Minister will be able to audit the financial statements of bodies, such as incorporated companies controlled by the Commonwealth.

This is a sensible oversight power. A number of bodies are controlled by the Commonwealth which could profit from an examination by the Auditor-General. This amendment should be supported. The Automotive Industry Authority Act 1984 is being amended to remove the requirement that a company be incorporated in Australia to be eligible to participate in the motor vehicle and components grants scheme. As the legislation is presently framed, Holden's Motor Company, now a United States of America subsidiary, would be excluded. That is not the intent of the scheme, and the Act is being amended to reflect the intent. That, once again, is sensible. The motor vehicle industry is in a desperate financial condition. On a per capita basis, sales of new cars are the lowest that they have been for many years-and that is another achievement of this Government, the legislation of which has had a direct effect on the viability of the motor vehicle industry, particularly legislation such as that pertaining to the fringe benefits tax.

The Crimes Act 1914 and the Removal of Prisoners (Territories) Act 1923 are being amended for, among other reasons, the purpose of removing two old common law rules. First, sentences of Federal offenders and Territory offenders will cease to run for the period that such offenders are at large. Under the common law they had a free kick, and the purpose of this legislation is to get rid of the free kick. If a prisoner had broken out of prison and had managed to stay at large, the effect of the existing common law rule was that while a prisoner was at large and his sentence had expired he could not be detained, and of course that was a considerable incentive to the more entrepreneurially-minded of prisoners to remove themselves from prison by unorthodox means. The other common law rule to be overcome deals with the case of a person who is accidentally released from prison, for example as a result of a clerical error. Under this amendment a prisoner would be required to return to prison, whereas presently a prisoner could not be returned to prison because the warrant had expired. There are some delights under the old common law system which need to be exhumed and examined from time to time-and I have referred to two of them.

The Director of Public Prosecutions Act 1983 is to be amended. The explanatory memorandum states:

Proposed amendments of section 6 of the Act are to enable the Director of Public Prosecutions to file an indictment where the Director is satisfied that a person has been erroneously committed for trial-

and I emphasise the word `erroneously'-

in respect of a State or Territory offence and not the appropriate Commonwealth offence.

I should have thought that the amendment, which I think is sensible, might well have gone further. The amendment-proposed new sub-section (2c)-provides:

Where:

(a) a person has been committed for trial otherwise than in respect of an offence against the laws of the Commonwealth; and

(b) the Director is satisfied:

(i) that the facts or evidence on the basis of which the person was committed for trial disclose the commission of an indictable offence or indictable offences against the laws of the Commonwealth; and

(ii) that, had the person's committal for trial for the indictable offence or indictable offences been sought on the basis of those facts or that evidence, the person could have been committed for trial for the indictable offence or indictable offences;

the Director may institute a prosecution on indictment of the person for the indictable offence or indictable offences or any of the indictable offences.

Putting that into more terse language, it seems to me that, where a person is committed for trial, but not in respect of an offence against the laws of the Commonwealth, and on an examination of the facts on which he was committed a Commonwealth indictable offence is disclosed, and had the person's committal been sought on the basis of those facts and the Director is satisfied that the person could have been committed for that offence or perhaps for a number of offences, he can go ahead and prosecute that person on indictment. On balance, I think that that is a sensible course. We always need to weigh the right of people to have committal proceedings so that an accused person has the opportunity to test the evidence against him and to persuade the Magistrates Court that he should not be sent to trial. But this provision deals specifically with the case of a person who has already been committed for trial, where certain facts have emerged in the course of those proceedings, on the basis of which a prosecution on indictment is sought. In those circumstances I think that the balance weighs in favour of the Director of Public Prosecutions having that kind of power.

The Management and Investment Companies Act 1983 is also to be amended. I have heard some expressions of concern about the amendment. The explanatory memorandum is not helpful; it is quite misleading. The Attorney-General's office was kind enough to take up my query concerning this amendment. The explanatory memorandum states:

Proposed new section 21 (5) is substituted to enable the Management and Investment Companies Licensing Board to impose, vary or revoke conditions on a licence at any time.

In fact, that is quite wrong. The purpose of the amendment is a very limited one. Existing section 21 (5) provides:

The Board may impose conditions when granting a licence under this section and may at any time when the licence is in force, by notice in writing served on the licensee, vary or revoke any of the conditions of the licence or impose further conditions.

I emphasise the words `impose further conditions'. There are cases-and I believe that this in fact applies to the majority of companies which have been given licences under the Management and Investment Companies Act 1983-where in fact no conditions of any kind have been imposed, and a doubt arises as to whether it is possible to impose further conditions on a company when no conditions at all had been imposed previously. I understand that this amendment seeks to overcome that doubt. It does not achieve the far more sweeping proposal outlined in the explanatory memorandum. I might say that that is a very good example of the reason why courts should approach explanatory memoranda, and indeed second reading speeches, with the greatest caution when looking around for some aids to an interpretation and understanding of what the legislature had in mind. Assuming that it had anything in mind at all, in this case the court would not be enlightened by this kind of advice.

Finally, an amendment is made to the Family Law Act 1975, under which there would be a right of appeal to the Full Court of the Family Court of Australia from a decree or decision of a judge rejecting an application that he or she disqualify himself or herself from hearing a matter. The explanatory memorandum-and I believe in this instance it is correct-goes on to say:

The Full Court of the Family Court does not have the power to issue a writ of prohibition against a trial Judge of the Court nor power under s. 94 to entertain an appeal against the refusal by a trial Judge of an application that he or she disqualify himself or herself. The only way that such a refusal can be reviewed is by an action in the High Court, in its original jurisdiction . . .

Of course that is extremely expensive, complicated, cumbersome and not the kind of remedy that should be the only remedy left to people who are confronted with an application to a judge; that that judge disqualify himself or herself, which the judge refuses. Anyone who has practised law knows of cases where such applications have been made. It is quite wrong that there should be no right to appeal for a person who believes, for example, that a judge has pre-judged a case. That is neither justice in fact, if the judge has pre-judged the case, nor the appearance of justice. The amendment will overcome that situation and I welcome it.

If time allowed I could, I suppose, spend another 24 hours going through the various amendments to this Bill. I do not propose to do so. I content myself with saying again that this is the kind of omnibus Bill which comes around from time to time and which is a useful way of dealing with technical matters, of tidying up legislation and dealing with the kinds of problems that I have touched upon in certain areas, so that one does not have to propose a separate Bill to deal with each of those matters. It is, of course, very necessary that governments keep in mind the need to confine this sort of Bill to matters which truly fall within the kinds of laws which may be tidied up and amended, so that we do not have really substantial changes made under the guise of tidying up. But I am not accusing the Attorney-General of any heinous offences on this occasion.